counts of murder.See footnote
1 The trial court accepted the jury's
recommendation against death and sentenced McIntyre to life in
prison without parole. In this direct appeal, McIntyre raises ten
issues. We affirm.

Facts

Marcos Ruiz and Rhonda Calvert were murdered in the home of
Leo Ruiz during the early morning hours of April 14, 1994. Leo
Ruiz, Marcos' father, had been working that night and had called
his home at 1:15 a.m. Marcos answered and, in the course of the
conversation, told Leo he was alone. When Leo returned home from
work around 4:30 a.m., he found the dead body of Marcos on the
living room floor and the body of Rhonda in the bathroom. Duct
tape had been used to bind Marcos' hands and to cover Rhonda's
mouth. An autopsy revealed that Marcos died from a decapitating
incision to the neck while Rhonda died from multiple stab wounds
and a partial incision to her neck.

Police first contacted Robert McIntyre around 2:30 p.m. on the
day of the murders. A local coffeehouse owner, Jim Santolino,
called police and told them a man named Robert had been with Rhonda
Calvert the evening before. When police interviewed McIntyre, he
acknowledged playing pool with Rhonda at the coffeehouse. He said

they had later gone to his apartment to drink a few beers and he
claimed he walked Rhonda halfway home shortly after 12:30 a.m.

About 8:30 p.m. the same day, McIntyre called the police
department and said he had more information. The police picked up
McIntyre at his request and brought him to the station, where
McIntyre added that he had had sex with Rhonda the previous night.
The police then drove McIntyre home.

On April 18th, a person claiming to be McIntyre's mother,
Diane McIntyre, called the LaPorte City Police Department to
express concern about McIntyre's possible involvement in the
crimes. She said McIntyre had gone to Valparaiso, and she provided
a phone number where he could be reached. Detective Lynn Cains
called the number and spoke with McIntyre. Detective John Kintzele
then met McIntyre in Valparaiso and asked him to come to the Porter
County Sheriff's Department. McIntyre signed a waiver of rights
form around 7:45 p.m. He continued to assert he had walked Rhonda
halfway to her home and then returned to his apartment. He said he
had returned home by running through yards and going over fences
rather than via the sidewalk. Asked whether it was possible that
his fingerprints would be discovered at the Ruiz home, McIntyre
responded that he had never been in the house and the police would
not find his fingerprints anywhere.

An hour after this interview, Detective Kintzele received a

phone call at the crime scene from Detective Clyde Crass informing
him that McIntyre wished to talk to Kintzele about blackouts he
sometimes experienced. Kintzele returned to listen. McIntyre said
that he was uncertain whether he had walked Rhonda all the way
home. When Kintzele asked McIntyre if he killed Rhonda and Marcos,
McIntyre responded that the killer must have gotten a lot of blood
on himself, and since he had found no blood on himself, he felt
that he had not committed the crime. He also said his fingerprints
might have been on the porch. At that point, Detective Kintzele
arrested McIntyre and informed him he was charged with two counts
of murder. After transporting McIntyre to the LaPorte City Police
Department, they placed him in an office, where he executed another
waiver of rights form.

In a taped statement given around midnight, McIntyre told
police that, though he only partially recalled the events of the
evening of the murder, he remembered running home to his apartment
with blood on his hands. He also stated, "When I found out that it
was a young girl named Rhonda that's been murdered I pretty much
knew that it was me who did it." (R. at 1466.) He continued to
equivocate regarding whether he had killed Marcos. Around 3 a.m.
McIntyre admitted to killing both Rhonda and Marcos and described
the details of the acts.

In a final statement, taken at 9:25 a.m., April 21, 1994,
McIntyre again admitted the crimes and described the events in

detail. On April 21, 1994, McIntyre also correctly described the
general design of the Ruiz home to police though he claimed he did
not know Marcos Ruiz.

Police investigators found McIntyre's thumbprint on the duct
tape which was covering Rhonda's mouth.

I. McIntyre's Past Acts

The State called Detective Kintzele as a witness in its case-
in-chief. He recounted statements McIntyre volunteered before
being arrested. Over McIntyre's objection, Kintzele stated:
He told me that he had had very many encounters with
law enforcement before. He stated that there were
offenses where he had committed battery against woman
[sic], he had hit woman [sic] . . . a burglary, there was
an offense called car prowling . . . .
I asked him what the longest period he had ever
spent in jail was, and he stated when he was around 13
years old he was convicted of felony rape, that he had
used a screwdriver, he indicated about that big
(indicating), approximately three inches, as a weapon to
rape a 12 year old boy.

(R. at 1342.) The State's theory of admissibility was that
McIntyre had volunteered the information. The prosecutor argued,
"if a defendant can volunteer that he murdered somebody and we can
get that admitted, why can't we get what information the Defendant
indicated about himself that he volunteered?" (R. at 1339.) More
or less agreeing, the judge admitted the statement.

McIntyre claims the evidence was submitted to show his
propensity to act in a criminal manner. The State counters by
arguing McIntyre's insanity defense opened the door to all evidence
relevant to his sanity, including criminal acts.

Whenever the State attempts to introduce evidence of a
defendant's prior misconduct, the trial court must consider whether
that evidence is offered to prove something other than the
defendant's bad character or propensity to commit the charged
crime. Ind.Evidence Rule 404(b); Ross v. State, 676 N.E.2d 339
(Ind. 1996). If it is, the judge must decide whether its probative
value outweighs its prejudicial effect. Evid.R. 403; Ross, 676
N.E.2d at 346. We review trial court evidentiary rulings for abuse
of discretion. Id.

Here, our review is complicated slightly by the fact that the
trial judge apparently admitted the statements regarding McIntyre's
prior bad acts on the theory urged by the prosecutor, that McIntyre
had volunteered the information to Detective Kintzele, while the
State urges on appeal the testimony was properly admitted as
relevant to McIntyre's sanity. (Appellee's Br. at 4-6.) Under
either theory, the trial court erred.

The trial judge's apparent belief that evidence of
McIntyre's past acts was admissible because, "[i]t's all a part of
the statement that he gave to the police when he came in," (R. at

1340), was error under Rule 404(b). While a defendant may waive
the protections of Rule 404(b) by offering evidence of his own
character at trial, Evid.R. 404(a)(1), he does not waive the
protections of Rule 404(b) by volunteering his previous bad acts at
some point before trial.

The State's attempt to salvage the trial court's ruling by
referring us to the common law insanity exception is a stronger
rationale for admitting Kintzele's testimony. Under common law, an
insanity defense opened a wide door for any evidence that might
throw light on the issue of a defendant's sanity, including past
criminal behavior. Anderson v. State, 615 N.E.2d 91, 92-93 (Ind.
1993). The State urges that this rule applies to the present
facts.

The extent to which our common law decisions on this point
survive the Indiana Rules of Evidence is a nice issue, but one that
does not save the ruling at issue here. Kintzele's testimony was
inadmissible under Rule 404(b), and it was irrelevant to the issue
of McIntyre's sanity at the time it was offered.See footnote
2

Several aspects of the trial record lead us to this
conclusion. First, at the moment the statement was admitted, the
focus of the trial was on proving McIntyre actually committed the
killings, not on his sanity. The State did not call Kintzele on
the issue of sanity. Instead, Kintzele's testimony generally
described McIntyre's pre-arrest interview on April 18, 1994, at
which McIntyre volunteered his reasons for being in LaPorte and the
facts of his relationship with Rhonda Calvert. At most, this
evidence provided jurors with a chronology of the events that
eventually lead to McIntyre's arrest and confession.

Second, Kintzele's testimony was not admitted to rebut
McIntyre's insanity defense inasmuch as McIntyre had not yet
provided any evidence about his sanity when the statement was
admitted. Third, it appears that nobody present at the trial
thought the testimony was being offered on the sanity issue. The
prosecutor argued the statement was admissible because it was
volunteered by McIntyre, and the judge apparently agreed. (See R.
at 1339-41.) It is difficult to see how the jury could have been
expected to apply such facts to the issue of sanity when even the
lawyers present seemed unaware of any such evidentiary nexus at the
time the statement was offered.

Accordingly, Kintzele's testimony regarding the defendant's
past acts did not conform with the requirements of Rule 404(b) nor
did it shed light on the sanity issue at the time it was offered.

This conclusion does not necessarily help McIntyre.

When a trial court erroneously admits evidence, we apply the
harmless error analysis of Indiana Trial Rule 61, examining whether
the error affected the substantial rights of the parties.

Here, there was insufficient impact on McIntyre's substantial
rights to warrant reversal. The evidence wrongly admitted against
McIntyre was hardly insignificant. On the other hand, properly
admitted evidence so solidly implicates McIntyre in the murders
that we are satisfied the illicit testimony could not have
substantially swayed the jury's verdict. McIntyre confessed, (R.
at 1466, 1376, 1516), and described the acts in chilling detail:
I was just gonna come in for a second, and uh me and
Rhonda were in the bedroom, we went in the back door and
uh I put tape over her mouth and . . . the other guy was
on the couch sleeping. . . . I woke him up. . . . I put
him on the floor and I tied his hands behind his back,
and I just reached up and cut his throat. . . . I got up,
it was like I was on a mission, . . . [I went] in the
bathroom and took--and I tried--cutting her throat, and
I ended up stabbing her. . . . I ran out the front door.
. . . I was on my way up to Virginia Street to go home.
. . . I went in the kitchen and I saw blood all over my
hands and I just started washing it off.

(R. at 1376.)
I pulled out some duct tape and I put it around Rhonda's
mouth and I escorted her into the bathroom. . . . [s]he
got down on her knees and facing the tub. . . . I grabbed
Marcos and I kinda drug him onto the floor. . . . Towards
the bathroom. . . . [Marcos' head was f]acing the back
sliding glass door . . . and his feet were facing the
front of the house. . . . I sat on his back and . . . I
put his hands behind his back and I tape [sic] em
together. . . . And uh he's not saying anything. He's
probably not even awake yet. And I, I reached up and I
put my hand over his mouth. . . . My left hand. . . . I
took a knife out of my pocket and I reached up and I cut

his throat. . . . I got up and I went into the bathroom.
. . . I went in there and I took my sweater off of
Rhonda. . . . [S]he was still knelt down by the tub. . .
. Facing away from me. . . . I reached up to cut her
throat and I ended up stabbing her. . . . I was behind
her. . . . [The knife was in] my right hand.

(R. at 1516.)

Moreover, McIntyre's confessions include statements that
indicate he knew facts only the murderer or the police
investigators could have known. For example, McIntyre's statements
about where he killed each victim and the position of their bodies
coincided with the actual locations and positions in which the
bodies were found. (Compare McIntyre's description, R. at 1516,
with testimony and photographic evidence describing the scene, R.
at 942-944, 990-91, 1031, 1033-35, 1039-43.)

Moreover, McIntyre's thumbprint found on the duct tape over
Rhonda's mouth corroborates the previously noted confessional
evidence and independently links him to the murders. Accordingly,
we think it unlikely the evidence of McIntyre's past acts
substantially swayed the jury.

II. The Telephone Call by McIntyre's Mother

Detective David Gariepy testified that a woman identifying
herself as McIntyre's mother, Diane McIntyre, had called him and
asked if Robert was considered a suspect in our homicide

investigation as Robert had indicated to her that he
wanted to come home and she didn't want him returning
home if this was ongoing. . . . She continued to tell me
that Robert couldn't be trusted to tell the truth and she
further indicated that he was currently staying with a
girl by the name of Danielle in Valparaiso, Indiana and
she provided us with the phone number of Danielle.

(R. at 1266.) Over a defense hearsay objection, the trial court
admitted the testimony, but admonished the jury that the
"statements of the female caller are not submitted to prove the
truth of what she said, but only to explain Sergeant Gariepy's
actions after the telephone call and must be disregarded for any
other purpose." (R. at 1265.) McIntyre contends that admitting
this statement was error.

When the admissibility of out-of-court statements received by
police officers engaged in investigative work is challenged as
hearsay and the State urges a purpose other than to prove a fact
therein asserted, we apply the analysis set forth in Craig v.
State, 630 N.E.2d 207 (Ind. 1994). We consider whether the fact to
be proven under the State's suggested purpose is relevant to some
issue of consequence, and then consider whether the danger of
prejudice outweighs the evidence's probative value. Id. at 211.

The facts leading the police to Valparaiso in search of
McIntyre were only marginally relevant. While the alleged Ms.
McIntyre's statement did show the police were not acting
arbitrarily in their investigation, neither the general reasons
they had for going to Valparaiso nor the specific words of the

statement were contested.See footnote
3 The State argues on appeal that
McIntyre raised the issue of the propriety of the police
investigation in his opening statement. (Appellee's Br. at 7-8.)
Opening statements are not evidence, however, and the propriety of
the police investigation was not otherwise questioned by McIntyre.
As for the second part of the Craig test, we conclude the
probative value of the above testimony (that the jury is able to
understand why the police continued to investigate McIntyre) was
outweighed by its prejudicial effect (that the jury could easily
deduce that McIntyre's own mother believed he was a legitimate
suspect in a homicide investigation, that he couldn't be trusted to
tell the truth, and that he planned to flee Indiana.)See footnote
4

Although McIntyre's claim satisfies the Craig test, it fails
on harmless error. The testimony provided only circumstantial
evidence of McIntyre's guilt, was given only once, and the facts
revealed by the statement were generally available to the jurors

via other valid evidence. Danielle Woday testified that on April
18, 1994, she took McIntyre to a Valparaiso Western Union office to
pick up $400 wired to him by his mother. (R. at 2140-41.)
Further, considerable evidence supports McIntyre's conviction, such
as his confession and his thumbprint on the duct tape. Finally,
the judge gave an appropriate admonition. This error was harmless.

III. Evidence of Other Possible Suspects

McIntyre claims the trial court erred in not allowing him to
submit evidence to show that others may have committed the murders.
McIntyre's tendered evidence consisted of multiple witnesses'
statements about suspicious cars in the neighborhood and overheard
threats to kill Rhonda and Marcos.

The State urges us to apply the standard set out in Burdine v.
State, 515 N.E.2d 1085, 1094 (Ind. 1987). The Burdine test,
however, has been superceded by the Indiana Rules of Evidence,
effective January 1, 1994. See Joyner v. State, 678 N.E.2d 386,
389 (Ind. 1997), reh'g denied. Evidence, including evidence that
another person may have committed the crime at issue, is relevant
when it has "any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Id.; Evid.R.
401.

We review admissibility determinations for abuse of
discretion, and reversal is appropriate only where the decision is
clearly against the logic and effect of the facts and
circumstances. Joyner, 678 N.E.2d at 390. Here, much of the
evidence offered by McIntyre would have been inadmissible as
hearsay and all of it was speculative.See footnote
5 Considering the negligible
value of the offered testimony, we conclude the trial judge acted
within the range of his discretion when he excluded it.

IV. Intoxication Instructions

McIntyre tendered an instruction on the intoxication defense,
which the court refused for lack of evidence. McIntyre claims
there was sufficient evidence regarding intoxication to oblige the
court to give his instruction.

A court must give a properly tendered instruction on
intoxication when the "evidence of intoxication, if believed, is
such that it could create a reasonable doubt in the mind of a

rational trier of fact that the accused entertained the requisite
specific intent." Williams v. State, 402 N.E.2d 954, 956 (Ind.
1980). Evidence that the defendant had merely been drinking is
insufficient to raise the defense of intoxication, Hubbard v.
State, 469 N.E.2d 740 (Ind. 1984), and where the record contains no
evidence that the defendant claimed an inability to form the
requisite mens rea because of intoxication, the court may properly
refuse to instruct on the issue.

While testimony at trial posited that McIntyre consumed
alcohol on the evening of the crimes, the intoxication defense was
not mentioned in either opening or closing argument, nor did
McIntyre offer any evidence for the apparent purpose of showing he
was intoxicated. Several of the State's witnesses testified
McIntyre did not appear intoxicated. The defense did not challenge
this testimony on cross-examination. McIntyre asserts on appeal
that the testimony of Dr. Berkson, stating McIntyre suffered from
an alcoholic blackout at the time of the offense, was sufficient to
require an instruction on intoxication. The testimony from which
this observation is taken, however, is generally oriented toward
the issue of McIntyre's sanity. Given the paucity of evidence or
argument asserting McIntyre was intoxicated, the jury could not
reasonably have plucked this evidentiary needle showing
intoxication from the haystack of evidence on insanity without
guidance from defense counsel. We conclude the court appropriately
refused the instruction.

V. State's Amendment to Its Death Penalty Request

On April 29, 1994, the State filed its death penalty request:
"Robert P. McIntyre did then and there unlawfully, knowingly or
intentionally murder a human being, Rhonda Calvert, after said
defendant, Robert P. McIntyre, had murdered another human being,
Marcos Ruiz . . . ." (R. at 52.) The statutory aggravating factor
alleged was thus: "The defendant has committed another murder, at
any time, regardless of whether the defendant has been convicted of
that other murder." Ind. Code Ann. § 35-50-2-9(b)(8) (West Supp.
1993). The original prosecutor thought that proving the order of
the killings was required. (R. at 406-07.) On May 16, 1995, after
learning that McIntyre intended to assert that the State could not
prove the specific order of the deaths it had alleged, the new
prosecutor, Scott Duerring, moved to amend the information, arguing
the proposed change was proper under the statute authorizing
amendments, Ind. Code § 35-34-1-5. The court permitted the
amendment, granted McInytre's motion for continuance, and reset the
trial for September 26, 1995.

McIntyre asserts error on two grounds. First, he argues the
court relied on the wrong statute. He claims that Ind. Code § 35-
34-1-5 is not applicable to death penalty requests, citing Games v.
State, 535 N.E.2d 530 (Ind. 1989), cert. denied, 493 U.S. 874.
Second, he argues the sequence of the murders was part of the

State's prosecutorial theory and the amendment took away a defense
available to him under the original information, prejudicing his
substantial rights. We first consider which statute applies. In Games, we held
that Ind. Code § 35-34-1-5 does not apply to preclude informations
requesting the death penalty filed subsequent to the initial
charging information. Games, 535 N.E.2d at 535. We reasoned that
because Ind. Code § 35-50-2-9 requires death penalty requests to be
filed separately, such a request is not an "amendment" of the
original charging instrument itself. Id.See footnote
6

In Thacker v. State, 556 N.E.2d 1315 (Ind. 1990), we
considered whether Ind. Code § 35-34-1-5(c) governs an amendment to
an already existing death penalty request. We concluded it did,
observing that this section protects a defendant's right to
reasonable notice and a fair opportunity to be heard concerning
amendments by the State. Id. We also acknowledged that those
rights exist whether the instrument alleges that the defendant
committed a crime, that he is a habitual offender, or that the
death penalty is applicable. Id. (citing Oyler v. Boles, 368 U.S.

Thus, Games stands in part for the proposition that a charging
information, a request for habitual offender sentencing, and a
death penalty request are separate legal instruments and the latter
two are not mere amendments to the first when submitted after the
first. Thacker stands for the proposition that section 35-34-1-5
governs subsequent attempts to change any of these instruments
after they are initially filed. Since the prosecutor here amended
a previously filed death penalty request, Thacker applies and the
trial court's reliance on Ind. Code § 35-34-1-5 was correct.See footnote
7

McIntyre next argues the State's amendment to its death
penalty request, i.e., removing the contention that he killed
Calvert after he killed Ruiz, changed the prosecutor's theory of
the crime and eliminated a defense available to McIntyre, thereby
prejudicing his substantive rights.

An amendment is one of form and not substance if a defense
under the original information would be equally available after the
amendment and the accused's evidence would apply equally to the
information in either form. Sharp v. State, 534 N.E.2d 708 (Ind.

1989). Further, an amendment is of substance only if it is
essential to making a valid charge of the crime. Id.

Though the first prosecutor predicated his death penalty
request on the theory that McIntyre killed one victim before the
other, we conclude the second prosecutor's amendment of that theory
did not prejudice McIntyre's substantive rights. We reach this
conclusion by considering the second part of the test stated in
Sharp: an amendment is of substance only if it is essential to a
valid charge of the crime. Id. In determining whether an alleged
fact is essential to a valid charge, the law itself, and not a
prosecutor's mistaken belief about the law, guides us. Here, the
prosecutor did not need to prove the order of killing to request
the death penalty; he only needed to allege that the defendant had
committed another murder "at any time." Ind. Code Ann. § 35-50-2-
9(b)(8) (West Supp. 1998). Accordingly, the amendment was one of
form and not substance and the trial court's granting of McIntyre's
request for a continuance adequately protected his right to notice
and his opportunity to be heard.

VI. McIntyre's Sentence of Life Without Parole

McIntyre claims a jury verdict of guilty but mentally ill
precludes a sentence of life without parole. Our statute states
otherwise: "Whenever a defendant is found guilty but mentally ill

. . . the court shall sentence the defendant in the same manner as
a defendant found guilty of the offense." Ind. Code Ann. § 35-36-
2-5(a) (West Supp. 1993); Harris v. State, 499 N.E.2d 723 (Ind.
1986), cert. denied, 482 U.S. 909 (1987). A defendant's mental
illness certainly weighs in the sentencing decision, but it does
not preclude a sentence of life without parole.

VII. Adequacy of Instructions

McIntyre alleges the court erred in refusing his tendered
instructions on mitigating evidence. Instead, the court instructed
the jury:
You are also to consider any of the following
mitigating circumstances that you may find to exist: The
defendant: (1) was under the influence of extreme mental
or emotional disturbance when he committed the murder;
(2) capacity to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was
substantially impaired as a result of mental disease or
defect or of intoxication; [or] (3) any other
circumstances appropriate for consideration.
You are to consider both the aggravating
circumstance and mitigating circumstances and recommend
whether the death penalty, life imprisonment without
parole or neither should be imposed. You may consider
all the evidence introduced at the trial resulting in the
defendant's conviction of murder, together with any new
evidence presented at this hearing.

(Supp. R. at 114.) McIntyre claims this instruction is inadequate
because the word "appropriate" did not let jurors know what factors
were indeed appropriate to consider as mitigating.

A trial court's refusal of tendered instructions that ask the

jury to consider the mitigating aspects of a defendant's life
history and character does not preclude the jury from considering
this type of evidence; rather, it declines to invite such
consideration. Bivins v. State, 642 N.E.2d 928, 950 (Ind. 1994).
The instruction recited above specifically told the jury it could
consider all trial and sentencing hearing evidence. Assessing the
evidence admitted at trial and during sentencing, we conclude the
jury had an adequate understanding of what facts were appropriate
for consideration. Much information about McIntyre's difficult
childhood and his character was available via the testimony of
psychiatrists, (R. at 1742-1890, 1919-2112, 2146-73), and through
McIntyre's own testimony. When we consider the court's final
instruction to the jury:
Each of you individually may consider as a mitigating
factor any other circumstances appropriate for
consideration. Any one or more of you may find the
existence of a mitigating factor if it is based upon any
evidence at either the guilt or the sentencing stage of
this trial. . . . Each of you must give effect to any
and all mitigating factors, which you personally find to
exist.

(R. at 2723-24.) We conclude the jury was sufficiently notified
that it was free to give independent mitigating weight to aspects
of the defendant's character and history in its sentencing
decision.

VIII. State's Argument at Sentencing

McIntyre argues the State made an inappropriate victim impact

argument at sentencing. Specifically, he urges the trial court
erred in allowing the State momentarily to place photos of the
deceased on an easel in front of the jury. He also sees error in
the prosecutor's later comment, "Murder is the ultimate act of
depersonalization. It transforms a living person with hopes,
dreams and fears into a corpse." (R. at 2713.)

McIntyre relies on our decision that in capital cases, Article
I, Section 16 of the Indiana Constitution requires that victim
impact evidence be limited to evidence relevant to those
aggravating circumstances specified in our death penalty statute,
Ind. Code § 35-50-2-9(b). Bivins, 642 N.E.2d at 955. How the rule
in Bivins applies to sentences of life without parole is a nice
question, but one we need not explore at length in this case.See footnote
8

The photographs of the deceased, viewed earlier by the jury,
were not victim impact evidence as we have used that term in our
cases.See footnote
9 We think the prosecutor's later statement about murder was
rather obvious--that murder ends a life and all the things that
make life meaningful. It is unlikely that jurors were unaware of

these grave effects of murder. We see no error.

IX. Sentencing

The jury recommended McIntyre receive a sentence of life
without parole. The judge found the jury's recommendation
reasonable and declared that the several mitigating factors were
outweighed by the single aggravating circumstance. (R. at 2754.)
The statutory aggravating factor, proven beyond a reasonable doubt,
was that McIntyre had committed another murder. The mitigating
factors considered by the trial court were: the defendant was
under the influence of extreme mental or emotional disturbance at
the time of the murders, his capacity to appreciate the criminality
of his conduct was substantially impaired as a result of mental
disease, and he expressed remorse for his actions and the crimes he
committed. McIntyre argues that the trial court erred in weighing
these factors.

Several mitigating circumstances may be outweighed by one
aggravating factor, and the commission of another murder is an
aggravating circumstance of the highest order. Baird v. State, 604
N.E.2d 1170 (Ind. 1992), cert._denied, 510 U.S. 893 (1993). Here,
the trial court meticulously complied with the procedure prescribed
by law. Ind. Code Ann. § 35-50-2-9 (West Supp. 1997). The judge
duly considered the recommendation of the jury, found the State had

proven at least one aggravating factor beyond a reasonable doubt,
and weighed the specific, applicable mitigating and aggravating
factors. His sentencing decision was based on the reasonable
recommendation of the jury and on his own specific and clear
findings. The court did not err.

X. Newly Discovered Evidence

McIntyre filed a motion to correct error, alleging two grounds
for a new trial. He first claimed newly discovered evidence showed
he was in the company of two previously unknown witnesses near the
time of the murders whose testimony he claimed would make it highly
unlikely that he could have committed the crime. (R. at 4.)
McIntyre also alleged the State violated its duty to disclose
exculpatory evidence by not informing him that one of the State's
witnesses, Robert O. Taylor, had been convicted of operating a
vehicle while intoxicated, that a petition for revocation of his
suspended sentence was pending against Taylor, and that an arrest
warrant was outstanding against Taylor at the time he testified.
The court denied McIntyre's motion. Denial of a motion predicated
on newly discovered evidence is a discretionary ruling, reviewed
deferentially. Fox v. State, 568 N.E.2d 1006 (Ind. 1991) (citing
Hammers v. State, 502 N.E.2d 1339 (Ind. 1987)).

In denying McIntyre's motion, the trial judge found:

[the new evidence] is cumulative and it would not produce
a different result. The evidence submitted at the trial
of this cause indicates that Marcos Ruiz was alive at
1:30 AM when his father called the home. The evidence
also indicates, via a stipulation entered into evidence,
that a witness would have testified that the Defendant
arrived at the Carriage House apartments between 3:00 to
3:30 AM. The testimony from the two new witnesses only
tends to support this time sequence that was presented in
evidence to the jury in this cause. As such the newly
discovered evidence would not tend to prove or support a
different result should this matter be retried.

(R. at 383.) Our review of the evidence causes us to conclude the
trial judge was right.

The touchstone fact is that Marcos Ruiz's father spoke with
Marcos on the phone at 1:15 a.m. the night Marcos was murdered.
McIntyre's new evidence was the testimony of Angela Carter and
Kelly Kronk. Both women were at Time Out II, a bar in LaPorte, in
the early morning hours on the night of the murders. Kronk was
working at the bar, while Carter was waiting for Kronk to get off
work so she could have a ride home. The two women were leaving the
bar after it closed, which is normally around 2:30 to 3 a.m., when
McIntyre approached them in the alley behind the bar and asked if
they could give him a ride to the Carriage House Apartments. They
agreed to help. At the time, neither woman saw blood on McIntyre.
Kronk recalls that the clock in her car read 1:48 a.m. as she was
driving McIntyre home.

McIntyre asserts this testimony would have shown the jury that
it was nearly impossible for him to have committed the murders
sometime after 1:15 a.m. On cross-examination, however, Kronk said

the ride occurred sometime between 2:30 and 3 a.m. and that her
clock might have been wrong due to the winter-spring time change.
All other evidence, including McIntyre's own stipulation regarding
the time he returned to the Carriage House Apartments, points to
the conclusion that McIntyre returned home around 3 a.m. There was
no error in denying a new trial based on this evidence.

The judge also denied the motion to correct error on the
second ground alleged, finding the State had used reasonable means
to determine the criminal background of Robert Taylor and did not
violate the court's discovery order inasmuch as the prosecutors
did not know about the proceedings to revoke Taylor's probation.
The judge found the evidence regarding Taylor's criminal record and
the outstanding actions against him to be "not material or relevant
in that it is not admissible evidence to impeach the credibility of
the witness." (Id.)

The State is required to disclose material exculpatory
evidence, including impeaching evidence. Brady v. Maryland, 373
U.S. 83 (1963). We do not agree with the trial judge's finding
that the evidence of Taylor's legal problems was wholly irrelevant
to Taylor's possible bias. Materiality is another matter.

The materiality question is whether, based on the totality of
the circumstances, there is a reasonable probability that
withholding such impeachment evidence resulted in the defendant not

The State's failure to supply McIntyre with evidence of
Taylor's DUI conviction, or to disclose the petition to revoke his
probation and his arrest warrant, does not undermine our confidence
in the trial's outcome.

First, the facts provided by Taylor's testimony were generally
available through other evidence. Taylor's testimony placing
McIntyre with one of the victims on the night of the murder was
corroborated by the testimony of others, including McIntyre
himself. Taylor's most damaging evidence was probably his
testimony that he was missing a knife and a roll of duct tape from
his home. Since McIntyre was Taylor's roommate and articles of
this type were used in the murder, the jury could easily infer that
McIntyre took the items and used them on the victims. However,
other evidence linked McIntyre to the instruments used to kill.
McIntyre himself stated he took the tape and knife from the
apartment he shared with Taylor and used them to bind and stab the
two victims, and McIntyre's thumbprint was found on the duct tape
on Rhonda Calvert's mouth.

Finally, while evidence of Taylor's legal troubles could have

affected the jury's view of his veracity, Taylor's reliability as
a witness was otherwise put into question. During cross-
examination, Taylor was confronted with several instances in which
he either made prior inconsistent statements or failed to remember
what he had told police. He also indicated that the knife he
claimed was missing had a wooden handle while McIntyre said in his
confession that the handle of the knife he used was stone or bone.
We conclude there is no reasonable probability that, had the
impeachment evidence been available to the defense, the result of
the proceedings would have been different, nor is our confidence in
the outcome undermined.

I concur in the Court's opinion except Part VI. A sentence of
life without parole is proper in this case only if any mitigating
circumstances that exist are outweighed by the aggravating circumstance the State has proved. Ind. Code § 35-50-2-9(i)(2) (1993).
I do not believe that standard has been met here.

The aggravating circumstance proved by the State in this case
was the multiple murder aggravator, Ind. Code § 35-50-2-9(b)(8).
Without question, this aggravator should be weighed in the highest
range. Roche v. State, 596 N.E.2d 896, 902 (Ind. 1992) (DeBruler,
J., concurring). But I would assign the mitigating circumstances
here _ Defendant's long history of severe mental illness and the
fact that the jury unanimously found him to be mentally ill _
equal if not greater weight.

At trial, defense counsel presented the testimony of Dr.
Jeffrey Samelson who earned a doctorate in clinical psychology and
who practiced in Michigan City for eighteen years. In Dr.
Samelson's opinion, Defendant was insane at the time of the killings.

During the ten sessions in which he examined Defendant, Dr.
Samelson performed a clinical evaluation, administered personality
tests, and reviewed Defendant's medical and psychological history.
According to Dr. Samelson's testimony, Defendant had been: (1)
repeatedly raped by his older brother when he was a child; (2)
stabbed by another brother;See footnote
1 (3) sexually molested by a school
tutor; (4) abandoned by his real father; and (5) hospitalized
several times for depression and suicide attempts. Dr. Samelson
also testified that Defendant had a long history of serious alcohol

and drug abuse. With respect to the personality tests, Dr.
Samelson found Defendant suffered from confusion, depression,
anxiety, emotional instability, low self-esteem, and thoughts of
suicide.

Relying upon this information and his evaluation, Dr. Samelson
determined that Defendant was suffering from five different mental
diseases including: bi-polar disorder, chronic dysthymia, personality disorder with borderline dependant and antisocial features,
alcoholism and substance abuse, and post-traumatic stress, most of
which are recognized in the Diagnostic and Statistical Manual of
Mental Disorders.

Dr. George Batacan, a court-appointed psychiatrist, also
diagnosed Defendant with bi-polar disorder and substance abuse.
Consistent with Dr. Samelson's opinion, Dr. Batacan's opinion was
that Defendant was insane when the killings occurred. Dr.
Batacan's psychiatric evaluation and mental status report to the
trial court showed that Defendant suffered from a long history of
mental illness including bi-polar disorder, manic depression, major
depression, and sociopathic personality disorder, and his report
summarized Defendant's history of hospitalization for suicide
attempts and mental illness.See footnote
2

Two other court-appointed psychiatrists, both with extensive
experience, also testified at trial. Their testimony was consistent with that of Dr. Samelson and Dr. Batacan as to Defendant's
background and history of mental illness. Dr. William Yee testified that there was no doubt in his mind that Defendant suffered
from mental illness but that he was unable to say either way . .
. whether he was insane or not at the time of the [murders]. Dr.
Myron Berkson, as the Court discusses in Part IV of its opinion,
reported that Defendant suffered from a mental disorder at the time
of the murders. His report also identified additional mental
illnesses from which Defendant suffered. However, Dr. Berkson was
of the opinion that Defendant was not insane at the time of the
killings.

In addition to this extensive record of severe mental illness,
the jury unanimously found Defendant to be mentally ill at the time
he committed the murders.

Based on the testimony of four experts _ Dr. Samelson, Dr.
Batacan, Dr. Yee and Dr. Berkson _ that Defendant had a long
history of severe mental illness and the fact that the jury unanimously found Defendant mentally ill, I would find that the aggravating circumstance does not outweigh the mitigating circumstances
in this case. I would vacate Defendant's sentence of life without
parole and instead impose a term of years.

Footnote: 1
Ind. Code Ann. § 35-42-1-1 (West Supp. 1993).
Footnote: 2
It is the point during trial at which the evidence was admitted
coupled with the substance of the comment, not the substantive content of the
statement alone, which causes us to find it irrelevant to the issue of sanity.
In fact, evidence more explicitly and authoritatively describing McIntyre's
past criminal acts was offered by both parties' expert witnesses testifying on
McIntyre's sanity. (See, e.g., R. at 2010-11, 2015-16, 2027 (testimony of
defense witness, Dr. William Yee, that McIntyre told him that had been
arrested for the rape of a young boy and that he had physically assaulted a
girlfriend in Washington).) Footnote: 3
Indeed, McIntyre specifically offered to stipulate the investigative
link between the telephone call and the later police contact with him in
Valparaiso. (R. at 1259.)Footnote: 4
The trial judge questioned the effect the above testimony would have
on the jury, stating to the prosecutor at a side-bar conference:
It seems to me that we're, we're talking about 10 minutes of
testimony when in essence with -- what you're trying to do is show
why did he call this number to contact the Defendant. And I don't
have an issue with allowing that to get in. Where I've got the
issue is all of the other stuff that comes in along with it that
frankly the jury can, can make assumptions or inferences from it
that I don't think are fair.
(R. at 1258.) The judge was correct in this analysis.
Footnote: 5
An example of the type of evidence McIntyre presented to the trial
judge follows. McIntyre claimed the witness "will testify that Jason Foster
wished someone would kill Marcos. Carl also heard the Latin Kings were after
Marcos and he observed some of them, the Latin Kings, in a black pick-up truck
about three weeks ago asking where Marcos lived." (R. at 2181-82); cf.
Joyner, 678 N.E.2d at 390 (trial court abused its discretion when it excluded
defendant's physical evidence, including a hair sample retrieved from a
garbage bag found over the victim's head which excluded defendant and
implicated another suspect, and testimonial evidence that showed this
alternative suspect had motive and opportunity to commit the crime in
question). Footnote: 6
Specifically, the Court held that filing a death penalty request after
filing a charging information was analogous to filing a subsequent request
that a defendant be charged as a habitual offender. Our cases have held such
an addition is not an "amendment" to the charging information and, also, that
such an addition does not in itself prejudice the substantial rights of the
appellant. See Games, 535 N.E.2d at 535 (citing Howard v. State, 268 Ind.
589, 377 N.E.2d 628 (1978), cert. denied, 439 U.S. 1049; Gilmore v. State, 275
Ind. 134, 415 N.E.2d 70 (1981)).
Footnote: 7
Whether Games or Thacker applies is only modestly important since in
either case the trial court's approval of an amendment or addition will be
deemed proper as long as the change does not prejudice the substantial rights
of the defendant. Compare Games, 535 N.E.2d at 535, with Thacker, 556 N.E.2d
at 1318. Footnote: 8
The trial judge did consider Bivins in ruling on defense objections to
the photographs, restricting their use to the moment the prosecutor used them
for "identification." (R. at 2710-12.)Footnote: 9
No evidence about how the acts of McIntyre specifically affected the
victims and their families, the kind we normally characterize as "victim
impact", was here admitted. See id. at 957 (The "victim impact" evidence
admitted in Bivins was the testimony of the victim's wife, who stated she had
lost the companionship, love, protection, care, friendship, and income of her
husband because of the defendant's acts).Footnote: 1
Dr. Samelson testified that Defendant's brothers made him crush an
animal to death and that at twelve years of age, Defendant witnessed a young
friend overdose on acid.Footnote: 2
For treatment of his mental illness and suicide attempts, Defendant
had been committed to Good Samaritan Mental Health Center, Harborview Medical
Center, Western State Hospital, and Puget Sound Hospital, all of which are
located in the state of Washington.